Burton and Repatriation Commission (Veterans' entitlements) - [2017] AATA 606

Burton and Repatriation Commission (Veterans' entitlements) [2017] AATA 606 (8 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0823
Re:Delwyn Burton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Member Dr G Maynard
Date:8 May 2017
Place:Brisbane

The decision under review is affirmed
..........................[Sgd]..............................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – war widow pension – where Applicant was de facto partner of the veteran – Deledio test – Statement of Principles – balance of probabilities – where kind of death was cerebrovascular accident – where kind of death was related to the veteran’s hypertension – salt consumption – hypothesis – whether veteran’s hypertension was caused by his salt consumption – whether veteran’s salt consumption was caused by his defence service – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlement Act 1986 (Cth) ss 68, 70, 120, 120A, 120B, 196A, 196B
CASES
Hill v Repatriation Commission [2004] FCA 832; 82 ALD 60
Repatriation Commission v Smith (1987) 15 FCR 327
Briginshaw v Briginshaw (1938) 60 CLR 336
Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 385
Repatriation Commission v Warren [2007] FCA 866
Repatriation Commission Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711; 37 AAR 383
Fogarty v Repatriation Commission [2003] FCAFC 136; 37 AAR 363
Benjamin v Repatriation Commission (2001) 70 ALD 622
Hill v Repatriation Commission (2005) 85 ALD 1
Elliott v Repatriation Commission [2002] FCA 26; 73 ALD 377
Aldcroft and Repatriation Commission [2002] AATA 432
Oakman and Repatriation Commission [1999] AATA 125
Ovenden and Repatriation Commission [2000] AATA 80
Woodger and Repatriation Commission [2003] AATA 39
Salter and Repatriation Commission [2003] AATA 231
SECONDARY MATERIALS
STATEMENT OF PRINCIPLES NO. 66 OF 2015
STATEMENT OF PRINCIPLES NO. 64 OF 2013
REASONS FOR DECISION
Senior Member J Sosso
Member Dr G Maynard
8 May 2017
INTRODUCTION

On 12 March 2015 Ms Delwyn Burton (the Applicant) lodged a claim for acceptance that the death of her deceased partner, Mr James Budd, was related to his defence service and therefore that a war widow’s pension was payable under the Veterans’ Entitlement Act 1986 (the Act) – Exhibit1 T8 pp.50-56.
Part IV of the Act makes provision, inter alia, for the payment of pensions to persons who served in peacetime with the Defence Forces and their dependants.
To be eligible for a pension under Part IV, a person must have had continuous full-time defence service for a period of at least three years between 7 December 1972 and 7 April 1994 – s 68.
Mr Budd served in Australian Army from 23 July 1974 until 26 July 1977 and from 6 September 1978 until 12 March 1984 – Exhibit 1 p.1.
It is not contested that Mr Budd rendered eligible defence service during these periods of time.
Mr Budd passed away on 11 November 2009 aged 57 years. His Death Certificate lists his cause of death as intracranial haemorrhage and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 606
Decision Date: 8 May 2017

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, who was the de facto partner of the deceased veteran, Mr. Budd, against a decision of the Repatriation Commission. The applicant sought a war widow's pension, contending that Mr. Budd's death from a cerebrovascular accident was related to hypertension, which in turn was caused by his excessive salt consumption, a habit allegedly developed during his defence service in Malaysia.

The primary legal issues before the Tribunal were whether Mr. Budd's hypertension was caused by his salt consumption, whether his salt consumption was caused by his defence service, and consequently, whether his death was "defence caused" within the meaning of section 70 of the relevant legislation. The Tribunal was required to apply the principles established in *Deledio* and consider the evidence presented, including the testimony of the applicant and the report of a consultant historian, Dr. Palazzo, to determine these questions on the balance of probabilities.

The Tribunal found the applicant to be a credible witness, accepting her testimony that Mr. Budd commenced taking salt due to the hot, humid climate in Malaysia and continued this habit, along with poor dietary choices, until his death. However, despite Dr. Palazzo's extensive research, no direct evidence was found regarding Mr. Budd's specific salt consumption during his service in Malaysia, nor were rations for that period identified. The Tribunal concluded that it was not reasonably satisfied that Mr. Budd's habit of ingesting excessive salt was caused by his defence service.

Consequently, the Tribunal was not reasonably satisfied that the evidence raised a connection between Mr. Budd's death and his defence service. Accordingly, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Jones testified that while he got used to using salt tablets whilst in Malaysia, on his return to Australia he did not take salt tablets unless he was in tropical conditions.Evidence of Dr Palazzo The last witness called was Dr Albert Palazzo, Consultant Historian. Dr Palazzo also prepared a document entitled “Report on the Military Service of James Arthur Budd” dated 3 October 2016 which was admitted into evidence as Exhibit 4. Dr Palazzo’s report was designed to illustrate the “likely salt consumption at Butterworth” – Exhibit 4 p.2. The document prepared is a very learned and illuminating piece of research. The oral evidence given by Dr Palazzo was also learned and he presented as a witness not only of learning but of objectivity. In short he presented as a professional whose research and evidence should be given weight. The difficulty confronting Dr Palazzo is set out in the second paragraph of his report (Exhibit 4 p.2):“Budd did not leave a personal record of his military service”. In the absence of any direct recollections from Mr Budd, Dr Palazzo sets out under the heading “Budd at Butterworth” a short history of Australia’s involvement in Malaya from the 1950s to the 1980s. He notes that from 1 September 1973 the ARA provided to Butterworth an infantry company on a three month rotation, which was known as Rifle Company Butterworth (RCB). After outlining the short history mentioned, Dr Palazzo notes (p.3):“I was unable to find a personal recollection of the type of tasks that RCB undertook”. The only primary material he was able to study was the statement of Mr Jones which was provided to him by Mr Harding’s instructing solicitors. Dr Palazzo then states (p.3):“I was unable to find any recollections from Budd’s rotation to Butterworth”. In short, Dr Palazzo, despite his very best endeavours, was unable to locate any primary material either from Mr Budd, or any of his ARA contemporaries specifically about Mr Budd’s service in Malaysia, or even more generally from ARA service personnel who served in RCB around that period of time. All that Dr Palazzo could locate was a 3 RAR Newsletter that had a scant reference to 3 RAR in Malaysia; but the newsletter was published in March 2008 and only referred to a then-current deployment – Exhibit 4 Document J. Accordingly, Dr Palazzo’s report, necessarily, has these limitations. Dr Palazzo’s next chapter is headed “Budd and Salt Consumption” but again there are limitations with the utility of this section. Dr Palazzo notes (p.5):“I was unable to find a description of the rations provided specifically for Butterworth”. Both in his report, and during his oral evidence, Dr Palazzo admits that the material he has collated on salt consumption by military/defence personnel is primarily material which relates to the Second World War or Vietnam. It is not contested that the Australian Army and Australian Government have long been cognisant of the need for salt supplementation for soldiers serving in the tropics.

Decision

Reasons for decision

We are reasonably satisfied that Mr Budd’s habit of ingesting excessive salt was not caused by his defence service. Consequently, we are reasonably satisfied that the evidence does not raise a connection between Mr Budd’s death and his defence service.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Injury, disease or death is “defence caused” if it is due to an occurrence, or arose out of or was attributable to or was aggravated by defence service, or is deemed defence caused – s 70(4) and (5).CONSIDERATIONIntroduction Mr Budd served in the Australian Army, with a break of around 12 months, from 1974 until 1984. The vast bulk of that time was spent in Australia. However, between 3 September 1975 and 24 November 1975 he was deployed as part of 2/4RAR to serve at the RAAF Base at Butterworth in Malaysia – Exhibit 1 T3 p.1. Adopting the approach outlined by Selway J in Hancock, the evidence presented establishes the following:(a)Mr Budd was a veteran who had eligible service;(b)The Applicant was at the date of Mr Budd’s death his de-facto partner;(c)Mr Budd died on 11 November 2009. We now outline and consider the evidence presented, and will then deal with two further issues:(a)The kind of death suffered by Mr Budd; and(b)The application of the relevant elements of the Deledio methodology.Evidence of the Applicant It is the Applicant’s contention that Mr Budd developed a habit of consuming excessive amounts of salt as a result of his service in Malaysia. The primary evidence for this comes from the Applicant in her written and oral evidence. In her Statement of June 2016 (Exhibit 2) she states:“21 Jim told me that he had served in the Australian Army and that he had spent three months in Malaysia at Butterworth Air base and that is where he commenced taking salt because of the hot humid tropical climate and that maintained his high level of salt usage ever after.” The Applicant confirmed this during cross-examination. She testified that she met Mr Budd in 2003, and didn’t know him previously. While she had met members of his family she did not have meals with them. The Applicant also testified that Mr Budd started taking salt tablets whilst he was serving in Malaysia and continued to take a salt tablet daily, usually in the afternoon, until his death. The salt tablets consumed by Mr Budd were purchased from the chemist. In addition, the Applicant testified to Mr Budd’s poor dietary habits. He would consume Kentucky Fried Chicken two to three times a week, and always add salt. Further, he would add salt to tins of stew which he consumed. In line with the Applicant’s testimony that she did not have meals with members of Mr Budd’s family, she testified that she had no knowledge of his family’s salt consumption habits. Mr Harding submitted (Applicant’s Outline of Submissions in Reply (AOSR) para 6) that the Tribunal should find the evidence of the Applicant reliable. He went on to submit:“She gave her evidence in a matter-of-fact manner and refrained from speculation about matters about which she had no knowledge. She took particular note of her husband’s salt consumption habits and inquired of him as to their provenance. There is no reason for the Tribunal not to accept evidence about these matters.” We agree with Mr Harding’s submission. The Applicant was a witness of credit, and she gave her evidence in a low key and convincing manner. We have no reason not to accept what she said under oath.